U.S. v. Perez, 3:02CR7 (JBA).

• Decision Date: 02 August 2002
• Docket Number: No. 3:02CR7 (JBA).,3:02CR7 (JBA).
• Citation: 222 F.Supp.2d 164
• Parties: UNITED STATES v. PEREZ et al.
• Court: U.S. District Court — District of Connecticut

222 F.Supp.2d 164

UNITED STATES v. PEREZ et al.

No. 3:02CR7 (JBA).

United States District Court, D. Connecticut.

August 2, 2002.

Richard A. Reeve, Michael O. Sheehan, Sheehan & Reeve, New Haven, CT, for Wilfredo Perez.

William M. Bloss, Jacobs, Grudberg, Belt & Dow, P.C., New Haven, CT, Norman A. Pattis, Williams & Pattis, New Haven, CT, Diane Polan, New Haven, CT, for Jose Antonio Perez.

Michael Dolan, O'Donnell, Riley, Iassogna & Dolan, New Haven, CT, Noah Lipman, New York City, Dan E. LaBelle, Halloran & Sage, Westport, CT, for Santago Feliciano.

James A. Wade, Craig A. Raabe, Robinson & Cole, Hartford, CT, Robert M. Casale, Branford, CT, Shelley R. Sadin, Zeldes, Needle & Cooper, Bridgeport, CT, for Fausto Gonzalez.

Jeremiah F. Donovan, Old Saybrook, CT, Auden Grogins, Fairfield, CT, for Raymond Pina.

David A. Ring, U.S. Attorney's Office, Hartford, CT, Peter D. Markle, John A. Danaher, III, Shawn J. Chen, U.S. Attorney's Office, new Haven, CT, for U.S.

Ruling on Motion for Early Discovery [Doc. # 96]

ARTERTON, District Judge.

Defendant Fausto Gonzalez has been charged with capital crimes and faces a possible sentence of death if convicted. In a motion subsequently adopted by other defendants in this prosecution, Gonzalez asks the Court to order the Government to produce eighteen specific categories of material relating to mitigating and aggravating factors that will be at issue at any future penalty phase. Gonzalez¹ argues that this material is necessary to allow his attorney to adequately represent him before the Capital Case Committee established by the U.S. Attorney's office pursuant to an internal Department of Justice memorandum setting out the procedure used by the Government when deciding whether to actually seek the death penalty.²

As set out below, the Court concludes that inasmuch as this case is currently a capital case because Gonzalez is presently subject to a possible sentence of death, materials relating to aggravating and mitigating circumstances are within the scope of the Government's obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Such materials are thus subject to immediate disclosure under the District of Connecticut's Standing Order on Pretrial Discovery, which is issued pursuant to the Court's inherent authority to manage its docket and supervise the orderly disposition of criminal matters. Defendant's motion is granted insofar as it seeks disclosures mandated by the Standing Order, with exceptions set out more fully below.

I. Background

Gonzalez has been charged with death-eligible offenses, and the Government is currently determining whether it will file a notice of intent to seek the death penalty. See 18 U.S.C. § 3593(a). Pursuant to internal DOJ policies, Gonzalez's attorneys have been invited to "present any argument that they believe may be relevant to the issue of capital punishment," including "the defendant's view of the circumstances surrounding the offense insofar as those circumstances militate against the death penalty; [] the defendant's view as to whether any aggravating factors that might arguably apply are inapplicable; and [] the defendant's view as to whether there are any statutory or non-statutory mitigating circumstances that the committee should consider." Letter from AUSA Ring to Defense Counsel (March 11, 2002) [Doc. # 113 Ex. D].

In preparation for this presentation, Gonzalez's attorneys have requested eighteen specific categories of information from the Government:

A. All evidence relating to the involvement in the crime of other persons against whom the Government is not seeking the death penalty.

B. All evidence of the victim's participation in the activities of a rival gang.

C. All evidence relating to the commission of any death-eligible offense in furtherance of the racketeering enterprise, criminal enterprise or drug conspiracy alleged in the Indictment by any co-conspirator or co-defendant against whom the Government has decided not to seek the death penalty.

D. Evidence relating to the race of those persons against whom the death penalty has been sought in this matter.

E. Evidence relating to the race of those persons against whom the Government could have but did not seek the death penalty in this matter.

F. All tangible evidence which the Government plans to use at any penalty phase or which is material to the defense of any penalty phase.

G. Forensic evidence which the Government intends to offer in its case in chief at the guilt or penalty phase.

H. Names, addresses, backgrounds and criminal histories of all witnesses the Government intends to call at its penalty phase.

I. Identification of the aggravating factors the Government is now considering in making its assessment of whether to seek the death penalty or which it plans to offer in support of the death penalty during the penalty phase.

J. All information tending to undermine the application of any aggravating factors.

K. Identification of the information and factors considered by the Government in deciding that the case should be prosecuted as a federal crime.

L. The identities, addresses and criminal histories (and "other records reflecting on the credibility") of all witnesses the Government intends to call at either the guilt or penalty phase of the trial.

M. Information within the scope of Giglio and Napue regarding payments or promises of immunity or other preferential treatment or benefit made to prospective Government witnesses.

N. All witness statements within the scope of Brady.

O. All Brady information which may be favorable to Gonzalez in either the guilt or penalty phase.

P. Line-up or other identification processes used to identify Gonzalez, including biographical data on the persons shown in each spread.

Q. All information relating to other crimes, wrongs or acts of Gonzalez that may be offered at either the guilt or penalty phase.

R. Portions of the Lopez presentence report that contain Brady material.

It is undisputed that the Government has provided significant material already, including material encompassed by the above requests, although no party specifically organizes into these categories what has already been provided. Similarly, the Government nowhere lists its specific, line-by-line objections to these discovery requests, instead relying on general areas of objection. In particular, the Government objects to disclosing:

1. "records from unadjudicated homicide cases in New York" (covered by requests F & J);

2. "information regarding others who were potentially involved in the charged offense," specifically noting that "[t]he vast bulk of this information—if not the entire universe— would be witness statements" (covered by request A);

3. disclosure and interpretation, under request I, of "all of the government's evidence in this case and other cases in New York," which the Government asserts will include "the substantive equivalent of internal memoranda"; and

4. witness statements encompassed by request N.

The Court assumes that the Government's key objections are to disclosing the statements of cooperating witnesses, disclosing information about on-going homicide investigations in New York, and disclosing internal memoranda.

II. Discussion

A. Brady

"The basic rule of Brady is that the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is `material' either to guilt or to punishment." In re United States (U.S. v. Coppa), 267 F.3d 132, 139 (2d Cir.2001) ("Coppa") (citing Brady v Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). "Although the Government's obligations under Brady may be thought of as a constitutional duty arising before or during the trial of a defendant, the scope of the government's duty ... is ultimately defined ... by reference to the likely effect that the suppression of particular evidence had on the outcome of the trial." Id. at 140 (citing, inter alia, Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)) ("[S]trictly speaking, there is never a real `Brady violation' unless the [Government's] nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict."). Under this retrospective regime, a Brady violation is established when: "(1) the Government, either wilfully or inadvertently, suppressed evidence; (2) the evidence at issue is favorable to the defendant; and (3) the failure to disclose this evidence resulted in prejudice." Id. (citing Strickler, 527 U.S. at 281-282, 119 S.Ct. 1936).

The scope of the Government's Brady obligations, far from being static, can change during the course of the prosecution: "the extent of the disclosure required by Brady [is] dependant on the anticipated remedy for violation of the obligation to disclose." Id. at 142 (emphasis in original). Thus, if the Government ultimately decides not to seek the death penalty, or if other circumstances preclude imposition of the death penalty (such as, for example, a jury verdict of Not Guilty on all death-eligible offenses), failure to disclose evidence that mitigates against imposition of the death penalty would not be a Brady violation because there would be no "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." U.S. v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).³ If, however, this is a death penalty prosecution, the Government's Brady obligations include disclosure of, inter alia, mitigating evidence, because if the Government discloses no mitigating evidence and a death sentence is imposed, there is a reasonable probability that the jury would have reached a different conclusion. Critically, the Government concedes as much. See Govt's Response [Doc. # 113] at 13 n. 5 ("The United States concedes that its Brady...